Lemon v. Kurtzman

Before ruling on the constitutionality of the statutes before it, the Court set up a three-pronged test, which Chief Justice Warren, writing for the Court, called "cumulative criteria developed by the Court over many years." In order to pass the test, a law was obliged to meet the requirements of the First Amendment: 1) the law must have a secular (i.e., not religious) legislative purpose; 2) the law in its principle or primary effect must neither advance nor inhibit religion; and 3) the law must not foster excessive entanglement of church and state.

Both statutes failed the third requirement of no excessive entanglement. Burger's opinion admitted that the wall Thomas Jefferson said must be erected between church and state "far from being a `wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." To guarantee that church and state remained separated under such laws, government would have to involve itself in constant monitoring of religious schools, an involvement amounting to excessive entanglement. In the end, wrote Burger:

The merit and benefits of these schools . . . are not the issue before us . . . The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter . . . and that while some involvement and entanglement are inevitable, lines must be drawn.

Although the Court has not yet abandoned the Lemon test, it has found ways of modifying it significantly. Justice O'Connor, for example, has convinced most of her fellow justices to shift the emphasis of the second prong of the test to a consideration of whether or not the law conveys a message of government endorsement or disapproval of religion.

State governments, realizing that the Court itself often found the results of Lemon unsatisfactory, were quick to find ways around it. For instance, the Court has taken a lenient attitude towards state aid that goes directly to parochial school students and their parents, allowing the state to provide such things as free transportation and educational testing and counseling services--assistance also afforded public school students. For the same reason, state tax deductions for educational expenses--regardless of whether they were incurred in public or religious institutions--have been allowed to stand. And in Agostini v. Felton (1997), the Court overturned a precedent set a decade earlier ruling out a New York City program that sent public school teachers to parochial schools to provide remedial education to disadvantaged students. In the intervening years, the Court said, the state had instituted safeguards to prevent excessive entanglement.